Master Service Agreement
August 10, 2020
MASTER PLATFORM AS A SERVICE AGREEMENT
THIS AGREEMENT GOVERNS YOUR USE OF THE REMATTER PLATFORM. BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR SUBSCRIPTION SERVICE FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS "YOU" OR "CUSTOMER" IN THIS AGREEMENT. "PARTY" OR "PARTIES" SHALL MEAN, INDIVIDUALLY, CUSTOMER, REMATTER, OR THIRD PARTY AS THE CONTEXT REQUIRES AND, COLLECTIVELY, CUSTOMER AND REMATTER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" AND "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM.
The Agreement, which includes all schedules hereto, governs the general terms and conditions pursuant to which Customer may purchase a subscription to, and ReMatter shall provide Customer with access to and use of, the ReMatter Platform and Professional Services offered on the ReMatter Platform.
This agreement was last updated on August 10, 2020 (the "Agreement"). It is effective between You and ReMatter Inc.., a Delaware corporation with offices at 2627 Hanover Street, Palo Alto, CA 94304 ("ReMatter") as of the date of You accepted this Agreement (the "Effective Date").
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
" Authorized User" means Customer's employee, agent, representative, suppliers, contractor, and/or consultant located in the United States who have been authorized by Customer to use and access the ReMatter Platform for a particular Facility under the terms and conditions of this Agreement.
" Conten t" means all informational text, data, software documentation, photographs, graphics, audio, video, graphics, messages, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof.
" Customer Content" means Content which Customer and its Authorized Users submit, post, store, display, upload, or transmit on or through the ReMatter Platform, including User Account information and credentials.
" Documentation" means documentation that ReMatter generally makes available to all of its customers who use the ReMatter Platform and any updates ReMatter makes generally available to its customers who subscribe to the platform during the applicable Subscription Term.
" Effective Date" means the date specified on Your Subscription Service Form.
" Facility" means the metal recycling facility for which Customer purchases a subscription to access and use the ReMatter Platform as specified on the relevant Subscription Service Form.
" Intellectual Property Rights" means all worldwide intellectual property rights now existing or hereafter acquired, including all: (a) patent rights and rights under patent applications; (b) copyrights and moral rights, and any applications therefor; (c) trade secret rights; and (d) rights in trademarks, trade dress, trade names, and design patent rights, and any applications therefor.
" Log Data" has the meaning set forth in Section 2.3(ii).
" Mobile App" means the part of the ReMatter Platform that is a mobile application which communicates with the ReMatter Platform enabling customers to dispatch drivers to specific locations. The Mobile App is available for download by customers on certain digital distribution platforms such as the Apple App Store.
" New Module" means a new feature, functionality, module or product that is not or will not be included in the ReMatter Platform, but which may be made available to all customers of ReMatter from time to time for purchase as an add-on to the ReMatter Platform for an additional fee, manifesting as an increase in the monthly subscription rate paid to ReMatter.
" Non-ReMatter Networks" has the meaning set out in Section 11.
" Peripherals" means, unless otherwise stated on the Subscription Service Form, those Customer's peripheral devices, including tablets, fingerprint scanners, signature pads, weigh scales, and ID scanners, that are connected to Customer's computers or mobile devices in order to use and access certain functionalities of the ReMatter Platform.
" Personal Information" means information that can be linked to an identifiable human individual.
" Professional Services" means any services rendered by ReMatter to Customer hereunder pursuant to a Subscription Service Form but specifically excluding support services.
" ReMatter Platform" means ReMatter's software as a service platform as described in Schedule 1, including the Mobile App and any Updates thereto that ReMatter makes generally available to its customers who subscribe to the platform during the applicable Subscription Term.
" Service Levels" means the service levels as set forth in the Service Level Agreement in Schedule 2.
" Subscription" means a subscription to use and access the ReMatter Platform for a specific named Facility as described in a Subscription Service Form.
" Subscription Service Form" means each order document provided by ReMatter and executed by Customer pursuant to which Customer subscribes to the ReMatter Platform. Each Subscription Service Form is subject to and governed by the terms and conditions of this Agreement.
" Subscription Term" means the duration of a Subscription, as defined in Section 10.1.
" Term" has the meaning set out in Section 10.1.
" Update" means an error correction, minor release, or improvement to a feature or functionality of the ReMatter Platform. For avoidance of doubt, New Modules shall not constitute Updates.
" User Account" has the meaning set out in Section 3.
" Virus" means any virus, trojan horse or computer software code, time bombs, harmful and malicious data, or other undocumented programs routines or devices designed or reasonably likely to disable, damage, impair, erase, deactivate, or electronically repossess software or data.
" Work Product" means any deliverables and technology developed, including any related Intellectual Property Rights, whether jointly or individually as part of the Professional Services rendered in connection with a Subscription Service Form.
2.** ACCESS TO REMATTER PLATFORM**
The ReMatter Platform and all Content will be hosted in the United States. ReMatter may host the ReMatter Platform using its own infrastructure or engage a third party. ReMatter shall at all times remain responsible for (a) compliance of any such third party with the terms of this Agreement; and (b) for the overall performance of the ReMatter Platform as required under this Agreement
2.2** Right to Use and Access**
(i) ReMatter Platform
Subject to the terms and conditions of this Agreement, ReMatter will make the ReMatter Platform available to Customer and Customer's Authorized Users for internal business operations, on a per-Facility, subscription basis. ReMatter hereby grants to Customer a limited, non-assignable, non-sublicensable and non-exclusive right for Authorized Users of each Facility to use and access the ReMatter Platform during the applicable Subscription Term, in the manner permitted by this Agreement and as made available by ReMatter.
(ii) Mobile App
Subject to the terms and conditions of this Agreement, ReMatter grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license for each Authorized User to install one object code copy of the Mobile App on the Authorized User's mobile device and to use the Mobile App solely in connection with the ReMatter Platform. ReMatter reserves all other rights in and to the Mobile App. Notwithstanding the foregoing, each Authorized User must agree to the terms of the End User License Agreement presented to them when they download the Mobile App from the App Store, from ReMatter or another authorized distribution channel.
(iii) Limitations and Restrictions
(A) Unless otherwise expressly specified in a Subscription Service Form, access to and use of the ReMatter Platform is purchased as a subscription for a particular Facility and may be accessed by Authorized Users only through their User Accounts and for the Facility specified on the applicable Subscription Service Form.
(B) The ReMatter Platform is provided solely for Customer's internal business use. Customer and its Authorized Users will not: (a) assign, rent, lease, distribute, copy, resell or otherwise provide access to or sublicense any element of the ReMatter Platform to a third party; (b) incorporate any element of the ReMatter Platform into any product or service provided to a third party; (c) remove or otherwise interfere with any part of the ReMatter Platform designed to monitor Customer's compliance with this Agreement; (d) use the ReMatter Platform for activities where use or failure of the ReMatter Platform could lead to physical damage, death or personal injury; (e) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to, or derive the algorithms, structure, or architecture of, any element of the ReMatter Platform, except to the extent permitted by applicable law and then only upon advance notice to ReMatter); (f) modify any element of the ReMatter Platform, or create any derivative product from any of the foregoing; (g) remove, alter or obscure any proprietary or other notices or labels contained in the ReMatter Platform; (h) publicly disseminate information regarding the performance of the ReMatter Platform; or (i) use the ReMatter Platform beyond the Subscription Term or in excess of the limits set forth in any Subscription Service Form.
(C) Customer shall (a) ensure that Customer Content complies with the terms of this Agreement; (b) promptly handle and resolve any claims relating to Customer Content, including any notice sent to Customer claiming that any Customer Content violates any person's rights; (c) maintain appropriate security, protection and backup copies of Customer Content; (d) be solely responsible for managing Authorized Users' access to Customer Content uploaded or inputted to ReMatter Platform; (e) immediately notify ReMatter of any unauthorized access, use, or disclosure of any Customer Content if in ReMatter's possession; and (f) provide ReMatter with such reasonable cooperation and assistance related to any investigation and remediation of such unauthorized access, use, or disclosure as ReMatter may reasonably request.
ReMatter shall have the right to immediately (a) delete any Customer Content, or part thereof, that is in breach of any of the representations and warranties set out in Section 12; and/or (b) remove or suspend any User Account that is responsible for the breach, in each case without incurring any liability whatsoever. Notwithstanding the foregoing, before taking any action as provided for under (a) or (b) above, ReMatter shall, to the extent feasible under the circumstances, reasonably consult with Customer regarding the reported breach, including as to whether other remedies would reasonably cure such breach.
(i) Customer may choose to use Peripherals with the ReMatter Platform. If Customer uses Peripherals that are not provided by ReMatter or if ReMatter provides any Peripherals for free or at cost as part of a trial or testing program (as set forth in a Subscription Service Form), Customer irrevocably waives any claim against ReMatter with respect to any such Peripherals, unless such claim is the direct result of a breach of this Agreement by ReMatter.
(ii) If Customer opts to permit its Authorized Users to use and access Peripherals with the ReMatter Platform, Customer authorizes ReMatter to permit the vendors of such Peripherals to access metadata regarding such Peripherals in the cloud, logs, audit trail events and metrics (" Log Data") as required for such Peripherals to interoperate with the ReMatter Platform. ReMatter will not be responsible for any disclosure, modification or deletion of Log Data resulting from any such access by vendors of the Peripherals. Any exchange of data (including Log Data) between Customer and any Peripherals (or by Customer between two or more Peripherals), is solely between Customer and the applicable vendor of the Peripherals, and ReMatter shall not have, and actively disclaims, any responsibility for the same.
2.4** Technical Requirements**
In order to use and access the ReMatter Platform, Customer must ensure that each Authorized User has access to an Internet connection and otherwise meets the minimum technical requirements set out in the Documentation.
3.** AUTHORIZED USER ACCOUNTS AND CONTENT**
Customer shall access and manage its use of the ReMatter Platform by means of user accounts which it may assign to each Authorized User (each, an " User Account"). Customer is responsible for (a) maintaining the confidentiality of user IDs, passwords and access to User Accounts; (b) managing access to User Accounts; (c) ensuring Customer's and its Authorized User's use of the ReMatter Platform complies with the terms of this Agreement; and (d) ensuring that its and its Authorized User's use of the ReMatter Platform is in compliance with all applicable laws. Customer will prevent unauthorized use of the ReMatter Platform by Authorized User and third parties and promptly terminate any unauthorized use of the ReMatter Platform. Customer is responsible for any and all actions taken using User Accounts and passwords. Customer shall, and shall cause its Authorized Users, to: (i) notify ReMatter immediately of any unauthorized use of any password or User Account or any other known or suspected security breach; and (ii) not impersonate another person or provide false identity information to access or use the ReMatter Platform. Without limitation, ReMatter may immediately remove or suspend any User Account affected by the activities described in the foregoing paragraphs (i) or (ii).
Customer is solely responsible for (a) managing, editing, uploading, and updating Customer Content onto the ReMatter Platform; (b) ensuring that Customer Content is and remains accurate, timely and complete; and (c) ensuring that its collection, use, and disclosure of Customer Content, Personal Information, and other data uploaded to the ReMatter Platform, is in compliance with applicable laws and regulations.
4.** SUPPORT AND SERVICE LEVELS**
ReMatter will provide Customer with support services set forth in Schedule 2 and make the ReMatter Platform operationally available in accordance with the service levels set forth in Schedule 2.
5.** PRIVACY AND SECURITY**
6.** PROFESSIONAL SERVICES**
ReMatter and Customer may agree to have ReMatter perform certain Professional Services for Customer. All such Professional Services shall be performed pursuant to mutually agreed upon Subscription Service Forms entered into by the parties pursuant to and performed under the terms and conditions of this Agreement.
7.** OWNERSHIP AND INTELLECTUAL PROPERTY**
7.1** ReMatter Ownership**
As between Customer and ReMatter, ReMatter owns and shall own all right, title and interest in and to the ReMatter Platform, Documentation, Work Product and all software, systems, and processes used in the delivery of the ReMatter Platform, including any and all Intellectual Property Rights therein or related thereto. Customer shall have a limited, non-transferable, non-sublicensable, and non-exclusive right, during the applicable Subscription Term to use and access the Work Product solely for its internal business purposes and solely in connection with its permitted use of the ReMatter Platform.
7.2** Customer Content**
(ii) During the Term, Customer hereby grants to ReMatter a limited, worldwide, royalty-free, non-transferable (other than as permitted under Section 15), non-sublicensable and non-exclusive license for ReMatter (and on behalf of ReMatter, its employees and subcontractors) to use, reproduce, adapt, modify, translate, publish, perform, display, and distribute Customer Content solely for the purpose of providing the ReMatter Platform, for the benefit of Customer.
7.3** Usage Data**
ReMatter monitors and collects configuration, performance, and usage data relating to Customer's use of the ReMatter Platform: (a) to facilitate delivery of the ReMatter Platform (such as (i) tracking entitlements; (ii) providing support; (iii) monitoring the performance, integrity, and stability of the ReMatter Platform's infrastructure; and (iv) preventing or addressing service or technical issues); and (b) to improve ReMatter's products and services, and Customer's experience. Customer must not interfere with that monitoring.
Neither party shall use any trademarks, trade names, logos and notices of the other party without the prior written consent of such other party.
(i) Customer will use reasonable efforts to notify ReMatter of any feedback or suggestions from Customer or Authorized Users relating to the ReMatter Platform, including any suggestions for modifications or enhancements to the ReMatter Platform (" Feedback").
(ii) Customer shall, and hereby does, grant to ReMatter a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. The parties agree that Feedback shall in no way be subject to any obligation of confidentiality.
8.** FEES AND PAYMENT**
8.1** ReMatter Subscription Fees**
The fees for the use and access to the ReMatter Platform (" Subscription Fees") are as set forth in the applicable Subscription Service Form.
8.2** Professional Services Fees**
Fees for Professional Services, if any, shall be included in each specific Subscription Service Form.
8.3** Payment Terms**
Except as may be expressly set forth in the applicable Subscription Service Form, ReMatter will invoice Customer monthly for any recurring charges or commitments as applicable to the following month. Customer will pay ReMatter the amount specified in the invoice via ReMatter's payment processor within ten (10) days of the receipt of the invoice. All fees and expenses are non-refundable upon payment. Payments will be made without right of set-off or chargeback. Late payments shall be subject to a service charge equal to one and a half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less and, without limiting any other remedy hereunder, may result in ReMatter suspending the provision of the ReMatter Platform, pursuant to Section 10.4(c), until such payments including any applicable service charge are received by ReMatter.
The fees do not include any applicable taxes. Customer shall pay all applicable sales, use, value-added, withholding and excise taxes, and any other assessments against Customer in the nature of taxes, duties or charges resulting from this Agreement, exclusive of taxes based on the net income or capital of ReMatter. When ReMatter has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides ReMatter with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.** TRIAL PERIOD**
9.1** Access and Use**
ReMatter may permit Customer to access and use the ReMatter Platform for a limited time on a trial or evaluation basis, or as part of a testing program (" Trial Period"). Customer's access and use of the ReMatter Platform during any such Trial Period will be governed by the Customer's Subscription Service Form in accordance with this Agreement.
NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, REMATTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, FOR THE REMATTER PLATFORM, AND ANY MATERIALS AND SERVICES PROVIDED, INCLUDING PERIPHERALS, DURING OR FOR THE TRIAL PERIOD. DURING THE TRIAL PERIOD, THE REMATTER PLATFORM AND RELATED MATERIALS AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS AT CUSTOMER'S OWN RISK AND CUSTOMER HEREBY RELEASES REMATTER FROM ANY AND ALL LIABILITY ASSOCIATED WITH THE TRIAL PERIOD. Nothing in this Section obligates ReMatter to provide Customer with a Trial Period or any support during a Trial Period, and ReMatter reserves the right to suspend or terminate any Trial Period, or otherwise discontinue Customer's access to the ReMatter Platform during a Trial Period, at any time without prior notice. Customer will not attempt to defeat or circumvent any duration mechanism for a Trial Period.
10.** TERM AND TERMINATION**
This Agreement commences on the Effective Date and will last for a duration set forth in the Customer's Subscription Service Form, unless otherwise terminated as set forth in Section 10.2 (the " Term"). The Subscription Term for each Subscription is set forth on the applicable Service Subscription Form.
Either party may terminate this Agreement (including all related Subscription Service Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; or (b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within thirty (30) days thereafter). Upon termination of the Agreement, all outstanding Subscription Service Forms shall terminate. Either party may terminate a Subscription Service Form (without effect to any other outstanding Subscription Service Forms or this Agreement) if the other party fails to cure any material breach thereof within thirty (30) days after written notice of such breach or pursuant to any other termination rights as set forth in the relevant Subscription Service Form.
10.3** Effects of Termination**
(i) Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to ReMatter under this Agreement before such expiration or termination will be immediately due and payable; (b) Customer shall immediately cease any and all use and access of the ReMatter Platform, and destroy all copies of Documentation and so certify to ReMatter in writing; and (c) each party will return the other party's Confidential Information, in whatever form it may exist, and all copies thereof, or, as directed by the other party, destroy such Confidential Information; and if so requested, must certify in writing to the other party that it has done so.
(ii) In the case of expiration or termination of this Agreement, upon request by Customer made within thirty (30) days after the effective date of such expiration or termination, ReMatter shall use commercially reasonable efforts to make available to Customer a complete download of all Customer Content in its then-current file or database format, or as such other format as the parties may agree in writing. For clarity, Customer shall be responsible for any expenses incurred by ReMatter in providing the above download and export and related assistance. Customer agrees that ReMatter shall not be liable to Customer, any Authorized User, or any other third party for any cessation of access to the ReMatter Platform following such expiration or termination, including for any damages arising out of any party's reliance on the continued availability of the ReMatter Platform.
10.4** Suspension of Access to ReMatter Platform**
In addition to its other rights under this Agreement, ReMatter may, upon written notice, suspend or terminate access to the ReMatter Platform by Customer or any Authorized User in order to: (a) prevent damage to or degradation of the same; (b) comply with any applicable law, court order, or other governmental request or order; or (c) respond to any non-payment of payments due by Customer hereunder. ReMatter will promptly restore access by Customer as soon as the event giving rise to suspension has been resolved to the reasonable satisfaction of ReMatter. Where the event giving rise to the suspension has not been resolved to the reasonable satisfaction of ReMatter within thirty (30) days of such suspension, ReMatter may terminate this Agreement upon prior written notice.
THE FOLLOWING SECTIONS OF THIS AGREEMENT SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS AGREEMENT: 2.2(iii)(B) (LIMITATIONS AND RESTRICTIONS), 2.3 (PERIPHERALS), 7.1 (REMATTER OWNERSHIP), 7.5 (FEEDBACK), 8 (FEES), 9.2 (TRIAL PERIOD DISCLAIMER), 10.3 (EFFECTS OF TERMINATION), 10.5 (SURVIVAL), 11 (CONFIDENTIALITY), 12 (WARRANTIES; DISCLAIMER), 13 (LIMITATION OF LIABILITY), 14 (FORCE MAJEURE), 15 (NO ASSIGNMENT), 16 (DISPUTE RESOLUTION), 17 (GENERAL), AND 18 (NOTICES).
11.1" Confidential Information" means information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, and equipment), which is designated as "Confidential," "Proprietary" or some similar designation or which, based on the context and circumstances under which the information is disclosed should be reasonably understood to be confidential or proprietary to the Disclosing Party. If disclosed in writing, Confidential Information shall be identified and marked as "Confidential" or a similar designation. Confidential Information does not include any information that: (i) was publicly available at the time of disclosure to the Receiving Party; (ii) was published or otherwise became publicly available after disclosure to the Receiving Party, through no fault of its own; (iii) was in the possession of the Receiving Party at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information without a breach of duty to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party.
11.2 Each Receiving Party agrees to use the same care to protect the Confidential Information of the Disclosing Party as it employs to avoid disclosure, publication, or dissemination of its own confidential information, but in no event less than reasonable care. With respect to ReMatter, compliance with Section 5 (Privacy and Security) meets such standard. Each Receiving Party shall only use the Disclosing Party's Confidential Information as required by this Agreement. Neither Receiving Party shall disclose any of Disclosing Party's Confidential Information to third parties or to the employees and contractors of the Receiving Party unless such employees and contractors are required to have the information in order to perform under this Agreement. Receiving Party shall ensure that its employees and contractors who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content like the provisions hereof, prior to any disclosure of Confidential Information to such employees or contractors. The Receiving Party shall promptly notify the Disclosing Party upon learning of any unauthorized disclosure or use, or loss of the Disclosing Party's Confidential Information. If the Receiving Party is served with a court order compelling disclosure of any Confidential Information of the Disclosing Party, it will, to the extent allowed under law, immediately notify the Disclosing Party so the Disclosing Party has a reasonable opportunity to oppose disclosure, and reasonably cooperate with the Disclosing Party in the event the Disclosing Party opposes disclosure. Any disclosure of Customer's Confidential Information resulting from a security breach at ReMatter shall not be a breach of this Section 11, unless such breach is the direct result of ReMatter's breach of Section 5 (Privacy and Security). This Section does not transfer ownership of Confidential Information or grant any license thereto. The Receiving Party shall return or destroy Disclosing Party's Confidential Information upon request, provided that ReMatter will be excused from its obligations under this Agreement to the extent its performance requires any Confidential Information returned or destroyed upon Customer's request.
12.** LIMITED WARRANTIES; DISCLAIMER**
12.1** Limited Warranties**
Each party represents and warrants that: (a) it has full corporate power and authority to enter into the Agreement and to carry out the transactions contemplated under the Agreement, including granting the respective licenses hereunder; and (b) it will comply with all laws, rules and regulations applicable to it in exercising its rights and performing its obligations under this Agreement. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement, including any Subscription Service Form. The warranties by ReMatter set forth in this Agreement are made to and for the benefit of Customer only. Each warranty will apply only if ReMatter receives written notification of the breach of such warranty within thirty (30) days following discovery of the act or omission causing such breach.
12.2 Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 12.1, REMATTER DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE REMATTER PLATFORM, WORK PRODUCT AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED BY REMATTER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, REMATTER MAKES NO WARRANTY THAT THE REMATTER PLATFORM OR WORK PRODUCT WILL BE ERROR FREE, WILL FUNCTION WITHOUT INTERRUPTION OR WILL MEET ANY REQUIREMENTS OR CUSTOMER'S EXPECTATIONS. ELECTRONIC COMMUNICATIONS BETWEEN CUSTOMER AND THE REMATTER PLATFORM WILL INVOLVE TRANSMISSION OVER THE NETWORKS THAT ARE NOT OWNED OR OPERATED BY REMATTER INCLUDING THE INTERNET (" NON-REMATTER NETWORKS"); ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES WHEN COMMUNICATED ACROSS SUCH NETWORKS; AND REMATTER IS NOT RESPONSIBLE FOR ANY ELECTRONIC COMMUNICATIONS, AND/OR CUSTOMER CONTENT WHICH ARE DELAYED, LOST, ALTERED, INTERCEPTED OR STORED DURING TRANSMISSION ACROSS NON-REMATTER NETWORKS.
13.** LIMITATION OF LIABILITY**
TO THE FULLEST EXTENT PERMITTED BY LAW, REMATTER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING LOST PROFITS, COST OF COVER, LOSS OF USE, LOST DATA, FAILURE OF THIRD PARTY SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
IN NO EVENT SHALL REMATTER'S AGGREGATE LIABILITY, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) WILL BE LIMITED TO THE FEES PAID BY CUSTOMER TO REMATTER FOR USE AND ACCESS TO THE REMATTER PLATFORM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY LIMITED REMEDY CONTAINED HEREIN.
14.** FORCE MAJEURE**
In no event shall a party be liable to the other party (other than payment obligations), for any delay or failure to perform in breach of any of the terms of this Agreement to the extent that such breach results from an event outside the control of the breaching party (a " Force Majeure Event"), including acts of God, acts of a public enemy, acts of terrorism, government acts, fires, floods, epidemics, pandemics, quarantine restrictions, freight embargoes, and unusually severe weather conditions, provided that, in every case, the delay or failure to perform is without the fault or negligence of the delayed or failing party, and that such delayed or failing party makes reasonable efforts to cure the delay or failure as soon as possible after the occurrence of the Force Majeure Event. If a party is unable to perform its obligations under this Agreement for more than sixty (60) days due to a Force Majeure Event, either party shall have the right to terminate the Agreement without further liability to the other party.
15.** NO ASSIGNMENT**
Neither party may assign or transfer this Agreement without the other party's prior written consent, provided that ReMatter may assign or transfer this Agreement so long as such assignment or transfer is to an affiliate of ReMatter, pursuant to a merger or acquisition of ReMatter, or to a purchaser of all or substantially all of ReMatter's assets related to this Agreement. This Agreement shall inure to the benefit of and be binding upon each party and their respective successors and permitted assigns and transfers.
16.** DISPUTE RESOLUTION**
16.1 Any dispute, claim or controversy between the Parties arising out of or relating to this Agreement, whether in contract, tort or otherwise, and the Parties' rights, remedies and obligations under this Agreement, are to be construed in accordance with and governed by the laws of the State of California, without giving effect to the State of California's conflict of laws rules. The Parties exclude the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods
16.2 In the event of a dispute between ReMatter and Customer with respect to any aspect of this Agreement: (a) the parties shall use reasonable efforts to resolve the matter in dispute; (b) if resolution of such dispute is not obtained within five (5) business days, such dispute shall be referred to Wyatt Pontius, CEO of ReMatter, and to the Customer's Contact as specified in the Customer's Subscription Service Form, for resolution; and (c) if such persons do not resolve such dispute within ten (10) business days, such dispute shall be referred to binding arbitration via JAMS through a single arbitrator appointed by mutual consent, acting reasonably, where (i) the place of arbitration will be San Francisco, California; (ii) the language of the arbitration shall be English; (iii) if permitted by the applicable rules, limited discovery will be permitted in connection with the arbitration upon agreement of the parties or upon a showing of substantial need by the party seeking discovery; (iv) the arbitrator's decision shall follow the plain and natural meaning of the relevant documents and shall be final and binding; (v) the arbitrator will have no power to award damages inconsistent with the Agreement, and the parties expressly waive their right to obtain such damages in arbitration or in any other forum; and (vi) all aspects of the arbitration will be confidential, such that neither the parties nor the arbitrator may disclose the existence, content, or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Judgment upon any award in such arbitration may be entered and enforced in any court of competent jurisdiction.
16.3 Notwithstanding the determination by the parties to use the dispute resolution process in Section 16.2 to resolve disputes arising out of or in connection with this Agreement, nothing herein shall preclude either party from seeking and obtaining from a court of competent jurisdiction appropriate equitable relief, including a temporary restraining order or other injunctive relief, to prevent a breach of this Agreement relating to Intellectual Property Rights or Confidential Information. In such cases, the parties irrevocably consent to the exclusive jurisdiction of the courts of the State of California, Santa Clara County for the purposes of adjudicating any matter arising from or in connection with this Agreement. Except to the extent precluded by applicable law: (a) any parties to an action brought hereunder shall be individually named, and Customer hereby waives any right it may have to litigate any such matter on a class or consolidated basis, or on bases involving disputes brought on a purported representative capacity; and (b) for clarity, the parties hereby irrevocably waive any right they may have to trial by jury.
No joint venture, partnership, employment, or agency relationship exists between Customer and ReMatter as a result of this Agreement or use or provision of ReMatter Platform or other services. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then such provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. No modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. This Agreement, including the schedules hereto and Subscription Service Forms (in each case as executed) constitute the entire agreement between Customer and ReMatter with respect to the subject matter hereof and supersede all oral or written prior or contemporaneous communications and proposals between the parties with respect to same. Unless a Schedule or Subscription Service Form explicitly states that a particular term of this agreement is superseded by a term in the particular Schedule or Subscription Service Form, then this Agreement shall control in the case of a conflict between the Agreement and the terms of the Schedule or Subscription Service Form. Any terms and conditions, including as submitted by Customer on its own standard form documentation, shall not replace, alter, or amend the terms of this Agreement, as no amendment can be made to this Agreement unless signed by authorized representatives of both parties. References to this Agreement herein shall mean this Agreement, all Schedules hereto and any applicable Subscription Service Forms entered into hereunder. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
Any notice or other communication required or permitted to be given pursuant to or in connection with this Agreement shall be given as hereinafter provided to:
Attention: Wyatt Pontius
Address: 2627 Hanover Street, Palo Alto, CA 94304
And to Customer at the Customer Contact information specified in the Subscription Service Form.
Any such notice or other communication, shall be deemed to have been received at the earlier of (a) when delivered personally; (b) one (1) business day after being delivered by any electronic means of sending messages (in this Section, " Electronic Transmission"), including facsimile transmission, during normal business hours on a business day, but notice by Electronic Transmission shall only be sufficient if the notice includes or is accompanied by the sender's name, address, telephone number and facsimile number or email address, the date and time of transmission and the name and telephone number of an individual to contact in the event of transmission problems and if acknowledgement of the transmission is transmitted to the sender by the recipient or the recipient's electronic system; (c) one (1) business day after being deposited with a courier service that guarantees "next business day" delivery; or (d) five (5) business days after being deposited in the regular mail with postage prepaid.
ReMatter Platform: The ReMatter Platform is a cloud-based platform which provides functionalities that companies – particularly those operating in the industrial recycling space – may find useful. These features include but are not limited to the ability to store and manage information about customers and suppliers; the ability to create and dispatch service jobs; and the ability to track and manage bin/asset locations. Additional features, described on the ReMatter website at https://rematter.io, may also be included with future updates to the Platform in accordance with the rest of this Agreement.
Mobile App: The ReMatter Driver app is a mobile app, available on the Apple App Store (iOS) and the Google Play Store (Android), which enables drivers to receive dispatch instructions from the ReMatter Platform. Each driver has a job queue and will receive job cards, which instruct the driver on how to complete jobs such as the start and end locations, job type, and associated bins/assets. Drivers can use the ReMatter Driver app to mark updates on their jobs, informing the ReMatter Platform user (the dispatcher) on their progress.
SERVICE LEVELS AND SUPPORT
A.** SPECIFIC DEFINITIONS**
" Action Plan" means ReMatter's plan on how to resolve the Support Request once the Support Request is logged in the ReMatter support system. An Action Plan will consist of a problem statement, steps to resolve, and estimated time to resolution.
" Business Day" means 9am Pacific Time (" PT") to 5pm PT Monday through Friday, excluding ReMatter holidays.
" Continuous Support" means twenty-four (24) hours per day, seven (7) days per week.
" Defect" means a software defect in the ReMatter Platform, acknowledged by ReMatter with a bug tracking number and associated with a Support Request, that prevents the ReMatter Platform from operating as described in the Documentation.
" Emergency Maintenance" means changes to the ReMatter Platform that cannot wait for standard scheduled maintenance. These changes could destabilize the system if not addressed expeditiously.
" Initial Response Time" means the interval that starts when ReMatter technical support staff opens a Support Request (as defined by the assignment of a unique Support Request number).
" Operational Support" means support on Business Days.
" Priority" means the priority level assigned by ReMatter to each Support Request.
" Problem Definition" means the phase where the problem is identified, and a Problem Statement is prepared and presented to Customer.
" Problem Statement" means a concise statement defining the problem.
" Support Request" means an issue that is reported by Customer to ReMatter.
" Scheduled Maintenance" means system/software maintenance that is scheduled to fix non critical errors and implement system/software changes.
" Support Update" means the periodic update given to Customer on the status of the Support Request. A Support Update will include: a statement of the problem, what has been done to this point to resolve the problem, what the next steps are toward reaching resolution and estimated time to resolution.
B.** SERVICE LEVELS**
Operation of the ReMatter Platform will meet and/or exceed the following operational performance metrics. The Rematter Platform will have at least 99% Availability per month as measured inside ReMatter's data centers. "Availability" excludes (a) hardware availability; (b) internet access availability; (c) scheduled maintenance on two (2) weeks notice or, if less notice is required, at times mutually agreed to by the parties, which agreement shall not be unreasonably withheld; (d) any downtime due to a Force Majeure Event; and (e) Emergency Maintenance.
Compliance calculation: actual Availability expressed as a percentage of the scheduled uptime (i.e., Availability % = ((actual Availability)/(scheduled Availability)) x 100%)
- Reporting of Defects. Reports of Defects (an "Incident Report") will be made by Customer to ReMatter's Customer Support Center by the means set forth in Section C(b) below. ReMatter's Customer Support Center will log the reported Defect and provide Customer with an incident tracking number to refer to when making follow-up inquiries.
- ReMatter Support Contacts. Customer shall contact ReMatter to report a Defect by at phone (650) 460-8870 or email firstname.lastname@example.org and/or email@example.com; provided, however, that Customer shall use the telephone support number to report Priority 1 Defects.
- Priority Definition. ReMatter shall be responsible for assigning priority levels to Defects based on the following definitions.
|Priority 1||A catastrophic Defect resulting in 100% loss of use and access to the ReMatter Platform. For example:· The ReMatter Platform is not available.· Security breach.· A software Defect rendering the ReMatter Platform 100% unusable.· No workaround is available.|
|Priority 2||A partial failure resulting in loss of capacity, features or functionality of the ReMatter Platform that impacts 50% or more of Authorized Users.· Significant degradation in response time or functional performance.· Software error that impacts standard features and functionality resulting in the ReMatter Platform being critically restricted in use. No workaround or fix is available.|
|Priority 3||A partial failure resulting in minor problems to occur with the exchange software that can be circumvented without difficulty or disruption to Customer's operations.|
|Priority 4||A request by Customer for assistance with operational use of the ReMatter Platform or other operations questions.|
D.** TECHNICAL SUPPORT RESPONSE TIMETABLE**
ReMatter shall use commercially reasonable efforts to provide an Initial Response and Resolution to Defects in accordance with the provisions of the table below.
|Priority Level||Initial Response||Problem Definition||Support Updates||Time until Resolution||Type of Support|
|Priority 1||1 hour||2 hours||Every two hours until resolved||ReMatter will use commercially reasonable efforts to resolve within 8 hours.||Continuous Support|
|Priority 2||4 hours||1 Business Day||Every eight hours or as mutually agreed upon at time of Action Plan||ReMatter will use commercially reasonable efforts to resolve within 2 days.||Operational Support|
|Priority 3||8 hours||2 Business Days||Weekly or as mutually agreed upon at time of Action Plan.||ReMatter will respond within a commercially reasonable timeframe.||Operational Support|
|Priority 4||1 Business Day||3 Business Days||Weekly or as mutually agreed upon at time of Action Plan.||ReMatter will respond within a commercially reasonable timeframe.||Customer Support|
Customer shall designate two named contacts as authorized support contacts. All cases into ReMatter support should come from one of these two individuals. From time to time it may be necessary to change the authorized contact. Customer should notify ReMatter Support in writing (email) of such changes.
F.** INTEGRATION SERVICES**
Except as otherwise provided in a Subscription Service Form, ReMatter will use commercially reasonable efforts to enable the ReMatter Platform to integrate and interfaces with the Peripherals Customer wishes to use. Such efforts may include assisting Customer with transitioning to new Peripherals, provided that the new Peripherals are capable of integration and that the re-integration would not impose an unreasonably disproportionate burden on ReMatter.